Osborne v. Harris Cnty., Civil Action No. H–13–435.

• Decision Date: 31 March 2015
• Docket Number: Civil Action No. H–13–435.
• Citation: 97 F.Supp.3d 911
• Parties: Jimmy OSBORNE, Plaintiff, v. HARRIS COUNTY, TEXAS, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

97 F.Supp.3d 911

Jimmy OSBORNE, Plaintiff

v.HARRIS COUNTY, TEXAS, et al., Defendants.

Civil Action No. H–13–435.

United States District Court, S.D. Texas, Houston Division.

Signed March 31, 2015.

Randall Lee Kallinen, Attorney at Law, Houston, TX, for Plaintiff.

Mary E. Baker, Houston, TX, for Defendants.

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

This case involves a midnight distress call and the search and detention that resulted from it. Police dispatchers sent officers to respond to a late-night tip about a domestic disturbance. The dispatchers gave the officers an address, which turned out to be incorrect. The police went to an apartment near the address they were given and talked to the occupant outside the apartment. The officers then forcibly entered, searched the apartment, and detained the occupant. He believes that the officers had no reasonable basis for the entry, the search, the detention, or the force used to secure his compliance. He filed this civil-rights action against the officers, their supervisor, and the county that employed them, alleging violations of the Fourth and Fourteenth Amendments. The defendants moved for summary judgment on the plaintiff's constitutional claims. The county argues that the plaintiff cannot establish municipal liability. The individual officers and their supervisor argue that they are entitled to qualified immunity.

Based on the motion, the briefs, the record, and the applicable law, the court grants the motion in part and denies it in part. The county's motion for summary judgment dismissing the municipal liability claim is granted. The supervisor's motion for summary judgment dismissing the claim against him is granted. The individual officers' motion for summary judgment dismissing the excessive force and unlawful detention claims is granted. The individual officers' motion for summary judgment dismissing the unlawful entry and search claim is denied.

The remaining issues are whether the four individual officers unlawfully entered and searched the apartment, violating federally protected rights. Counsel for the remaining parties are ordered to appear for a pretrial conference on April 9, 2015, at 3:00 p.m. in Courtroom 11–B at 515 Rusk Street, Houston, Texas, 77002, to set a schedule and plan to resolve the remaining claims.

I. Background¹

Shortly after midnight on May 24, 2011, Harris County Sheriff's Dispatch received a telephone tip. The caller reported people yelling and throwing things in the apartment directly behind hers, and stated that it sounded as if things could become violent. At approximately 12:36 a.m., Sheriff's Deputy Michael Fair was dispatched to respond to the reported “Disturbance/Other.” Dispatch sent the deputies to 11800 Grant Road in Cypress, Texas, and directed them to the apartment directly behind apartment 3602. (Docket Entry No. 32–1). The call slip notes stated:

rep can hear distb. in unknown; Bldg. 63; rep can hear arguing between male/female; throwing things; apt behind rep.

....

REP CAN HEAR CURSING

....

DIRECTLY BEHIND REPS APTS 3602

(Docket Entry No. 32, Ex. F, at 174).

The deputies did not go to apartment 3608, which was directly behind 3602. (Docket Entry No. 32, Ex. A ¶ 4). Deputy Fair and Deputy Nichols checked the apartment next to 3602 and found it vacant. Deputy Fair “looked around to see if [he] could hear any disturbance, but [ ] was unable to locate any disturbance.” (Id. ).² He did, however, “observe[ ] a male in apartment 3612,” where Jimmy Osborne lived. (Id. ). When two other deputies—Guidry and Woolsey—arrived, Deputy Fair knocked on the door to 3612.

Osborne stated in his declaration that he was alone in apartment 3612. The television was at a “low to medium” volume. (Docket Entry No. 35, Ex. A, ¶ 3 (Osborne Declaration)). “There were no loud noises or voices emanating from” the apartment, and Osborne himself “heard no loud noises or voices” from “any other apartment.” (Id. ). When Deputy Fair knocked on the door, Osborne opened it, “stepped out onto [the] landing,” and “closed the door behind” him. (Id. ¶ 4).³ He did not talk to the deputies from inside the apartment doorway because he had to keep his dog from running out. (Id. ). Deputies Fair, Guidry, Nichols, and Woolsey were standing nearby. They began asking Osborne about the domestic-dispute report that Dispatch had received. Osborne told the officers that he had “no idea what they were talking about” and that they clearly had the wrong apartment number. (Id. ¶ 5). The officers asked him again, and Osborne repeated that he had no information. Deputy Fair observed that Osborne was “acting in a nervous and obviously uncomfortable manner upon [their] arrival, which made [Fair] feel as if there were circumstances of which [he] was unaware.” (Docket Entry No. 32, Ex. A, ¶ 5). Deputy Fair believed that “Osborne was trying to block [their] view inside the apartment.” (Id. ).

Deputy Guidry asked Osborne who else was in the apartment. (Docket Entry No. 35, Ex. A ¶ 6). “[N]o one, I live alone,” Osborne responded. (Id. ). The deputies told Osborne that they were “going in to check.” (Docket Entry No. 32–11, at 30).

Osborne protested and refused them entry. (See id. ). Despite Osborne's answer, Deputies Guidry and Nichols “moved toward the door, grabbed the door handle, opened the door,” and entered Osborne's apartment, without his permission.⁴ (Docket Entry No. 35, Ex. A, ¶ 7). Osborne testified that he “tried to go back toward the door” to “try and block the other deputies from forcing entry.” (Docket Entry No. 32–11, at 79, 82; see also Docket Entry No. 35, Ex. C (“I was trying to lunge forward to keep the first deputy from entering my apartment.”)). At that point, Deputy Fair “grabbed [Osborne's] left arm” and “forcefully pull[ed] [him] away from the door.” (Docket Entry No. 35, Ex. A, ¶ 6). Osborne testified that he pushed Deputy Fair with both hands “when he was pulling [Osborne] away” from the door, saying “keep your hands off me.” (Docket Entry No. 32–11, at 51). “Deputy Fair then grabbed [Osborne's] left wrist and began twisting it” so that he could handcuff Osborne's left hand. (Id. ¶ 8). Osborne contends that after Deputy Fair handcuffed his left hand, he “got a hold of [Osborne's] right arm and yanked it around behind [Osborne] and put the other cuff on [Osborne's] right wrist.” (Id. ¶ 9). During this “scuffle, ... [Osborne] felt something pop in [his] right knee and [ ] felt great pain.” (Id. ).

Deputy Fair contends that Osborne “resisted, both verbally and physically,” the deputies' entry into the apartment and Deputy Fair's efforts to handcuff him. (Docket Entry No. 32–1, ¶ 7). In his deposition, Osborne acknowledged that he was “trying to pull away from [Deputy Fair]” to “try and block the other deputies from forcing entry” into his apartment and that he pushed Deputy Fair with both hands. (Docket Entry No. 32–11, at 32–33, 51). Osborne also testified that “the incident between” Deputy Fair and himself “escalated” when the other three officers entered his apartment without his permission. (Id. at 25).

Deputy Woolsey entered Osborne's apartment “and came in an[d] out several times.” (Docket Entry No. 35, Ex. A, ¶ 7). Five minutes after Deputy Fair handcuffed Osborne, Deputy Guidry “stuck his head out [of Osborne's apartment]” and “told [D]eputy Fair ... to ‘keep those cuffs on him, he's got a shitload of guns in here and I don't want him running loose while we're in here searching.” (Id. ¶ 11).⁵

Osborne states that he had only three guns, all “legal,” and “in plain sight.” (Id. ¶ 12). According to Osborne, the officers continued searching his 900–square–foot apartment for “another 10 minutes,” despite the fact that the search was initiated as a welfare check in response to the domestic-disturbance tip, to see if anyone in the apartment needed emergency assistance. Osborne points out that a similar welfare check for his downstairs neighbor lasted only a few minutes. (Id. ¶ 13).

About three to five minutes later, Osborne overheard another officer yell “it's in the back.” (Id. ¶ 14). Osborne presumed this referred to “where the incident was actually taking place.” (Id. ). Deputies Guidry and Nichols came out of Osborne's apartment at that time, at least 15 minutes after beginning their search. They “told Deputy Fair to leave the cuffs on” Osborne. (Id. ¶ 15). Deputy Nichols waited with Osborne while the others went to “where the incident was taking place.” (Id. ¶ 15). After another 15 to 20 minutes, Deputy Fair returned and removed Osborne's handcuffs. The deputies had learned that although Dispatch told them that the disturbance was in the unit behind apartment 3602, it was in fact behind apartment 6302. (Docket Entry No. 32–1, ¶ 10).

Osborne estimates that he was “in handcuffs, on [his apartment] landing, for around 35–45 minutes.” (Docket Entry No. 35, Ex. A, ¶ 17). As the defendants acknowledge, “[t]here is a factual dispute as to whether [Osborne] was detained in handcuffs while the Individual Defendants responded to the correct location of the disturbance.” (Docket Entry No. 37, at 9). The defendants have submitted Dispatch logs to support their contention that the detention was shorter. (Docket Entry No. 32, Ex. F). But the logs are largely consistent with Osborne's account. At summary judgment, the court must resolve this dispute in Osborne's favor.

Osborne complained to the deputies' supervisor, Sergeant Jeffrey Gable, shortly after the handcuffs were removed, asking for the deputies' names and business cards. Sergeant Gable refused to identify his deputies but gave Osborne his own name and a number to register a complaint with the Sheriff's Office. Osborne returned to his apartment at 1:25 a.m. (Id. ).

Osborne filed a complaint with the Harris County Sheriff's Internal Affairs Department. The complaint resulted in “no discipline [ ]or any finding [that] the activities violated” the Sheriff's Department policy. (Id. ¶ 20). Osborne alleges that he...